Investigatory Powers (Amendment) Bill [Lords]

Joanna Cherry Excerpts

2nd reading
Monday 19th February 2024 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

On that point, will the Home Secretary give way?

[James Cleverly]

I will, but I do want to make some progress.

[Joanna Cherry]

I thank the Home Secretary for giving way. He mentioned listening to scrutiny by the ISC. The Joint Committee on Human Rights has issued a call for written evidence on the Bill, and as he will know from the human rights memorandum, the Bill raises important human rights issues relating to the rights to privacy and to freedom of expression, and possibly the right to an effective remedy. Will he therefore undertake to look closely at any correspondence that the Joint Committee might send him when we have completed our scrutiny of the Bill?

[James Cleverly]

I reassure the hon. and learned Lady that we will do exactly that.

I turn to the measures in the Bill. We are creating a new regime for bulk personal datasets that have low or no expectation of privacy: for example, certain datasets that are widely publicly or commercially available. Bulk personal datasets are an essential tool to support our intelligence services in identifying fragments of intelligence within a large quantum of data, in order to disrupt threats such as terrorism and hostile state actors. The Bill seeks to create a new statutory oversight regime for how the intelligence services access and examine bulk personal datasets held by third parties. It will place that oversight on a statutory footing, increasing the transparency of the regime. The regime will be subject to strong safeguards, including the double lock.

We are also making changes to the notices regime that will help the UK anticipate and address the risk to public safety of companies rolling out technology that precludes lawful access to data. We want to work with those companies to achieve common goals, but we must have the tools available when collaboration falls short.

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[James Cleverly]

The lengths that some people will go to to avoid Committee scrutiny. I am trying to remember where I was; it has been such a long time since I looked down the page of this speech. All such applications must be necessary and proportionate and subject to independent authorisation or inspection.

The Bill will also strengthen safeguards for journalistic material within the Investigatory Powers Act’s bulk equipment interference regime, aligning it with changes to the bulk interception regime that are under way to ensure compliance with obligations under the Human Rights Act 1998. Prior judicial authorisation will be needed before material obtained through bulk equipment interference can be selected for examination using criteria where the purpose is to identify, or is highly likely to identify, confidential journalistic material or confirm a source of journalistic material. Prior judicial approval is also necessary before such material may be retained for purposes other than its destruction. The other measures in part 5 of the Bill will ensure that the resilience and protections of the regime are maintained and enhanced.

The Bill will also make improvements to support the Investigatory Powers Commissioner in effectively carrying out their role, ensuring that the world-leading oversight regime remains resilient, including powers to enable the IPC to appoint deputies, delegate some of their functions to judicial commissioners and the newly created deputies, and put certain functions on a statutory basis. The Bill will ensure there is a clearer statutory basis for reporting errors to the IPC.

[Joanna Cherry]

I sense that the Home Secretary is coming to the end of his speech. We have mentioned parliamentarians and journalists, but I want to talk about another important group: trade unions. Some people fear that the Bill will open the door even further than its parent Bill on the surveillance of trade unions. Does the Home Secretary agree that there should be no place for the surveillance of trade unions in a democracy? If so, will he consider amendments to the Bill to ensure that that does not happen, including a redraft of clause 5?

[James Cleverly]

I take the point that the hon. and learned Lady puts forward. There are a number of organisations not explicitly mentioned in the Bill where that argument could be made, and I am not sure it would necessarily be useful or right to list them all, but I will take on board the point she makes in good faith—genuinely.

The Bill will bring the Investigatory Powers Act up to date with the modern age, provide greater clarity, make the system more resilient and retain the world-leading safeguards of civil liberties and commercial integrity. Above all, the Bill will mean that the men and women who work so incredibly hard to keep us safe, often without recognition, have the tools they need to do so in the modern era. I therefore commend the Bill to the House.

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[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Let me start with two thank yous. First, let me put on record my party’s gratitude to the intelligence services and law enforcement organisations that work so incredibly hard to keep all our citizens safe in the face of constantly changing and developing threats. Secondly, I thank all those who took part in the reviews of the 2016 Act that have informed the Bill. However, as Lord Anderson said in his own review, they should be a starting point for parliamentary scrutiny and debate rather than a finishing point.

Although any opportunity to revisit and improve the 2016 Act would generally be welcome, my party has serious concerns about certain provisions in this amendment Bill. In short, while it is constantly presented as “updating”, and as protecting and making efficient pre-existing powers, we fear that the reality is a very significant expansion of what are, we must remember, already extraordinarily wide powers by international standards. There are significant privacy and human rights risks, and the danger of increasingly widespread suspicionless surveillance. We fear that we may be handing invasive powers to intelligence and law enforcement agencies not because the powers are necessary or essential to their work but because they are convenient, and that is not striking the right balance.

All this is consistent with the very detailed and principled privacy and human rights concerns that my party raised in relation to the 2016 Act itself—particularly in the speeches made by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who is here to take part in the debate again today. As will be the case today, we did not oppose the Second Reading of that Bill, but in the absence of important amendments, or concessions and reassurances—again, as with the 2016 legislation—we keep open the option to oppose the current Bill at a later stage.

Today I will focus on concerns relating to bulk personal datasets, and on notices relating to changes in telecommunication services. I will also briefly flag up our concerns about internet connection records and changes to the offence of unlawfully obtaining communications data. My party also believes that this Bill provides an opportunity to revisit the whole issue of snooping on parliamentarians, if we are bold enough to take it.

I shall turn first to bulk personal datasets and part 7 of the 2016 Act. In short, we struggle to see that the proposed changes have been shown to be necessary. We fear that they will instead create even larger gaps in the oversight regime in relation to these capabilities. A whole host of concerns arises in relation to the provisions of clause 2 and the concept of data in relation to which there can be

“low or no reasonable expectation of privacy”.

Bluntly, I struggle to see how a decision maker is supposed to assess people’s reasonable expectations of privacy, and when we say “people” we can be talking about hundreds or thousands of people or potentially several million people. Within that group of individuals there will be many varying attitudes to further privacy, and the data related to individuals could vary hugely from the mundane to the deeply personal. It may be that there is supposed to be some type of “reasonable person” test applied, but is that reasonable person black, gay, Jewish or indeed a trade unionist? How are potentially very different subjective attitudes to be accounted for? These might seem like odd questions, but the experience in the United States of America, where a similar test is involved, proves that these questions are very real indeed. Is it a general question of privacy in relation to the data or a more specific question of expectations of the use of that data by intelligence services? What precisely is low expectation? This seems to be an impossible assessment to undertake in any realistic or meaningful sense.

[Joanna Cherry]

I thank my hon. Friend for his kind comments earlier. As usual, he is making a very forensic speech. On this issue of a reasonable expectation of privacy, does he agree that clause 2 and clause 11(3) seem to be based on a legal misunderstanding that people lose their right to privacy when they happen to share certain information with someone else? He will be as aware as I am that that runs contrary to the jurisprudence of the European Court of Human Rights and that, by contrast, the Court has actually said that privacy includes

“the right to establish and develop relationships with other human beings”.

Does he agree that it is important to ensure that this Bill is commensurate with our obligations under the European convention on human rights?

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[Sir John Hayes (South Holland and The Deepings) (Con)]

Hegel said, “What is reasonable is real, and what is real is reasonable.” In facing the very real threats that pervade, it is certainly reasonable that we equip those missioned to keep us safe with the powers they need to do so. That is partly about putting in place a legislative framework that allows them to counter those threats, for we know what will happen otherwise. We sit in this Chamber graced by the coats of arms of our former colleagues Jo Cox and David Amess. We in this place know what it means when those missioned to keep us safe are unable to do so.

On that basis, I was proud and pleased to take the original Investigatory Powers Bill through this House—some veterans of its passage are in the Chamber tonight—and, in doing so, we were conscious of the need to strike a balance between, on the one hand, providing the powers and equipping the police and the security services with the necessary mechanisms to do their job and, on the other hand, retaining both the privacy of individuals and putting in place the necessary safeguards mentioned by the shadow Home Secretary, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper).

That balance was at the heart of our considerations then. I am conscious that I said in that debate:

“It is important to understand that privacy is at the very core of the Bill… The protection of private interests and the protection of the public are at the heart of all we seek to do”.––[Official Report, Investigatory Powers Public Bill Committee, 12 April 2016; c. 90.]

That remains so, but it is also important to recognise that we always anticipated that the legislative arena was bound to require a dynamic approach, of the kind we are discussing this evening, and that we would need to update the legislation to deal with the changing character of the threats I described. It comes as no surprise that the Government have introduced legislation to do just that, to add to what is already on the statute book and to make it more appropriate.

[Joanna Cherry]

The right hon. Gentleman and I often crossed swords during the passage of the 2016 Act, but we have since reached a point of rapprochement on discovering our mutual passion for the importance of freedom of expression. From what he is saying this evening, I think we can also agree on the importance of privacy. Of course, that comes from the right to a private and family life under article 8 of the European convention on human rights. Does he agree that it is unfortunate, given this Bill’s huge implications for our constituents’ privacy, that the Government have decided not to conduct a privacy impact assessment? Surely such an assessment is vital, and it is perhaps something upon which he and I can again, rather unusually, agree.

[Sir John Hayes]

Our agreements are becoming rather less unusual. I do not know whether that gives the hon. and learned Lady any pleasure, or whether it causes her pain. None the less, she is right that, when we consider such legislation, it is important that it is scrutinised to an even greater degree than we would normally expect in this place.

The 2016 Act was considered by three Committees of this House. It was subject to pre-legislative scrutiny by a Joint Committee of both Houses of Parliament and, indeed, the bulk powers, which have been mentioned, were subject to an independent review by David Anderson, who has since been elevated to become Lord Anderson.

The hon. and learned Lady is right that the need for scrutiny is profound, particularly when we equip organisations with extensive authority to invade private space. Of course, we will not know much of what they do. Many of the individuals involved in the security services and the police, and the work they do, are rightly unknown to all but a few, so it is all the more important that, in giving them such authority, we behave in the way that the hon. and learned Lady describes—I am now adding to the small, two-person coalition formed between us.

It is right that the legislation is updated to make it fit for purpose. The ISC, of which I am also proud to be a member, has been told of the need for urgent, targeted and necessary changes. When we consider this Bill, we should test whether its provisions are indeed urgent, targeted and necessary. I am not absolutely convinced that all we see before us passes that test, and I will say a little more about that when I come to clause 14 and its associated schedule.

There is more expertise in the Chamber tonight than I could possibly imagine but, by way of background for the wider audience, I will say a word about what the 2016 Act does and why this Bill therefore matters. The Act provides the law-enforcement and security services with the vital powers they need to keep us safe, and it does so in a way that is clear and transparent.

When we passed the Act into law, we ensured that the safeguard mechanisms were radically overhauled. The innovative double lock that we put in place was, at the time, unprecedented. As the shadow Home Secretary said, it does two things: it provides the necessary protection that she describes, but it also gives the security services confidence that what they are doing is not only authorised but thoroughly checked. It is also good for Ministers to know that the process has judicial oversight as well as political oversight.

There have been a number of changes since the Act was passed, both in the job done by the security and intelligence services and the police and in the reason they have to do that job, for the people who seek to do us harm are dynamic, too; they change what they do, and technology has also changed. All of that explains why this Bill is, in broad terms, welcome and necessary.

But the powers I describe are not given solely to the people I mentioned. They are also given to a number of other public bodies. This was debated at great length when the 2016 Act was considered in this place. These public bodies—ranging from local authorities to the Environment Agency, the Health and Safety Executive and all kinds of others—have proper legal functions. I am not debating that, but they are not quite of a kind with the security services and the police. To grant these bodies such intrusive powers was always controversial and, to put it mildly, was bound to give rise to some scepticism.

When Parliament considered the Act, we deliberated on that provision in great detail and took a very considered and cautious decision to restrict the use of the power, which we considered to be intrusive. As a result, the public bodies that I have described, including the Environment Agency, the Health and Safety Executive and local authorities, are required to take further procedural steps in order to compel the disclosure of communications data from telecommunications operators. They must obtain either an authorisation under the current IPA, a court order or other judicial authorisation, or regulatory powers in relation to telecommunications or postal operators, or they must obtain the communications data as secondary data as part of a valid interception or equipment interference warrant. So their ability to take advantage of the powers within the existing Act is both limited, particular and subject to those safeguards. The Bill before us seeks to remove that requirement for those further procedural steps in relation to a wide range of public regulatory authorities.

Worse still—I hope the Minister will correct this in his summation—we have yet to learn which those bodies are, as we have not seen a list of the authorities. I hope we will get that list, if not tonight—as it is a big ask for the Minister to read them all out in his 10-minute summation, I hope he will write to the House, and put a copy of the letter in the Library, explaining which bodies will enjoy those powers.

The Government’s argument for removing the restrictions I have set out is that a broader array of communications now fall into the category of communications data—the definition of communications data has broadened—and that a wider number of organisations now constitute telecommunications operators. As a result, it is said that the current restrictions prevent some regulatory authorities from acquiring the information necessary to carry out their statutory responsibilities. The problem with that argument is that unless we know what those regulatory functions are and unless we understand which bodies are involved in the supervisory functions, it is hard to know whether the changes before the House can be legitimised. I have no doubt that will be explored in Committee— I would be amazed if it is not—but it would be helpful if the Minister could be ahead of that further consideration and clarify which specific bodies will fall into this category.

As I said, the issue was highly scrutinised when we last debated these matters. At that time, the powers were tied to national security and serious crime circumstances only, to avoid impinging on the very privacy mentioned by the hon. and learned Member for Edinburgh South West (Joanna Cherry). For that reason too, Parliament granted the powers to a limited range of organisations. We should not brush that aside lightly. Colleagues will be aware of various reports of the intrusive use of investigatory powers by local authorities and other public bodies. The House would not be content to introduce sweeping powers for an unknown and potentially unlimited number of public bodies, when a previous Parliament decided that was too intrusive. I would like the Minister to satisfy the House about the necessity of the change, to specify to whom the change will apply, and to reassure us that there is no weakening of the core connection between the privacy of the individual and the necessary powers available to do what is legally right.

As I said earlier, in broad terms the Bill is welcome. It is important to understand that we need to update the legal framework in which those missioned to keep us safe operate, but the Bill can be improved during its scrutiny. I simply point out that when we debated the Act in its original form, we recognised that through scrutiny that Bill could be improved. As we continue consideration of this important measure, I hope that this Minister—one of my successors as Security Minister—will recognise the same.

Safety of Rwanda (Asylum and Immigration) Bill

Joanna Cherry Excerpts

2nd reading
Tuesday 12th December 2023 Commons Chamber

[James Cleverly]

I can reassure my right hon. and learned Friend that that is absolutely not the intention of the Bill. The deeming clause is specifically about the safety of Rwanda, because of our response to their lordships’ position at the Supreme Court hearing. We are not seeking to redefine through domestic legislation international law.

[Joanna Cherry (Edinburgh South West) (SNP)]

If the right hon. Gentleman is right and the treaty with Rwanda meets the concerns of the Supreme Court, why is this Bill necessary? If Rwanda is now a safe country as a result of the treaty, why is this highly controversial Bill, which is clearly causing great problems in his own parliamentary party, necessary?

[James Cleverly]

We are putting forward legislation that will be clear and unambiguous, so as to support the treaty. The treaty addresses the concerns raised by their lordships.

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[Alison Thewliss]

I acknowledge that different lawyers will have different opinions. In its briefing, the Law Society of England and Wales says that the Government are being disingenuous in what they are claiming, and I will take their word for it.

[Joanna Cherry]

The right hon. Member for South Holland and The Deepings (Sir John Hayes) cites various judges, but the most supreme court in the United Kingdom is the UK Supreme Court, and it was very clear in the first Miller case that, although parliamentary sovereignty might mean that the law can be changed internally, this Parliament cannot legislate its way out of its international obligations. Does my hon. Friend agree that, no matter what various judges may have said at various times, it is a recent massive constitutional case of the UK Supreme Court that we should look to on this issue?

[Alison Thewliss]

My hon. and learned Friend is absolutely correct, and has knowledge of many of these issues. It is important to reflect on those cases and what they actually mean, rather than what Government Members wish they meant.

The Bill declares Rwanda safe in all circumstances. In so doing, it undermines the rule of law and the separation of powers, preventing the courts from establishing their own facts and driving a sleigh and a squad of reindeer through the principle of restraint. My tortured metaphor ends here because, far from being Santa, the Home Secretary makes the Grinch look generous; he truly does have a heart that is two sizes too small.

The treaty creates new rules for Rwanda but, in reality, nothing has changed in the weeks since the judgment. Lords Reed and Lloyd-Jones said that

“intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice.”

The Supreme Court found that Rwanda has thus failed to meet international obligations and is unlikely to meet additional ones. There is no evidence that the long-term culture shift required is likely to happen quickly. Rwanda processed only 228 decisions on asylum claims in 2020, and rejected claims from countries such as Afghanistan, Syria, Yemen, Iran and Eritrea.

I do not want to get dragged into the merits or otherwise of Rwanda as a nation, as there is a far broader principle in play. If we start to offload our international responsibilities to a third country—any third country—we are effectively surrendering our influence over what happens next. This Government themselves have become the people traffickers, sending human beings offshore against their will as if they were some kind of waste to be processed rather than human beings alike in dignity. There are real concerns about the impact that this flagrant disregard for international co-operation could have on trade policy, the Good Friday agreement and the Windsor framework. The implications of what is happening here today could be far-reaching and long-lasting across many aspects of all our lives.

Let me move to cost. Quite typical of the way that this Tory Government run their business, there has been secrecy over the cost. Yesterday, the permanent secretary was finally forced to reveal the additional £100 million payment to Rwanda, after the figures showed up in some International Monetary Fund paperwork. That is on top of £140 million the previous year and £50 million to come next year, for a scheme that thus far has seen more Home Secretaries than asylum seekers flown to Rwanda. It will cost £169,000 per asylum seeker—significantly more than if they were processed in the UK and allowed to rebuild their lives here and contribute to society, as so many dearly wish to do.

We all know that the capacity of the deal makes it practically impossible. The estimated capacity of around 200 would mean that the probability of being renditioned to Rwanda is one in 230. If the UK Government were to remove everyone who crossed in a small boat last year, it would cost £7.7 billion. That would be an obscene use of public funds at any time, but particularly so in a cost of living crisis. Then there is the ongoing problem, which the Government are failing to address, of those people who have arrived and will not be removed. They are forever stuck in immigration limbo, with their cases deemed inadmissible. At what cost? Where will they stay? What will they do for the rest of their lives?

A further danger of the Bill is that it will force people into even riskier behaviour. The Refugee Council has stated that almost everyone who arrives in the UK does so after being intercepted by the UK coastguard, the Royal National Lifeboat Institution or Border Force, and many actively contact those agencies asking to be rescued. The Bill makes it far less likely that they will do so. They will take more dangerous routes and they will not seek assistance, and the inevitable result is that many more will die in the channel or in the back of refrigerated lorries. The Bill will also leave people at the mercy of exploitative people traffickers. The Home Affairs Committee has already found that

“the fight against human trafficking is, in practice, no longer a priority for the UK Government”.

The Bill, and the Illegal Migration Act 2023 that came before it, make that worse.

The treaty also states that there is nothing to stop people leaving Rwanda once they are removed there, regardless of anything Ministers may claim. The BBC, on its visit to the Gashora refugee camp in Rwanda, found that those who had been moved there under other schemes did not wish to stay:

“Of the almost 2,000 people who have been relocated to the transit camp in Gashora since it was set up in 2019, none opted to stay in Rwanda when given the option, preferring instead to move to another country.”

So what do we have? We have endless failed policies. We have the ramping up of tensions through rhetoric. We have ineffective legislation. We have the overruling of judges. We have the abolition altogether of the asylum system. We have the undermining of human rights. It is like the TV series “Years and Years” on steroids.

It does not have to be this way. Together with Refugees published this week a clear alternative to fixing the broken system and keeping people safe. Ministers could not be less interested. The response from the right wing? To pillory Gary Lineker for having the temerity to speak his mind. The Scottish Government recently published a paper setting out an alternative in Scotland to this ineffective and failing system, ending the hostile environment and ensuring that humane, fair and compassionate refugee and asylum policies are a priority.

We should never forget the traumas and unimaginable suffering that lead people to flee their homes. They are people, just like us. Were it happening to us, we would all hope to be treated far better than those on the Government Benches would have it, and to find safety and sanctuary when we needed it most. It was on that principle that the refugee convention was created. We should stand up for that principle today and reject this cruel, unworkable and illegal Bill.

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[Sir William Cash (Stone) (Con)]

The recent Rwanda case is the most recent case on matters relating to parliamentary intentions, the supremacy of law and the rule of law, and the proper application of the rule of law. One claimant—and it requires only one claimant—had his claim dismissed by the Supreme Court on the grounds that parliamentary sovereignty had already undermined his case. The case was about retained EU law, but it actually undermined the case of that claimant. That was a clear indication that the Court was going to take the sovereignty of Parliament first, and that is the key issue in this debate.

It has been said by the courts that sovereignty trumps international law. It is absolutely clear that that is the case. Only this year, the House of Lords Constitution Committee, in paragraph 58 of its report on the rule of law, stated:

“Parliamentary sovereignty means that Parliament can legislate contrary to the UK’s obligations under international law.”

That was a reinforcement of the judgments I mentioned in an intervention, including those of Lord Hoffmann, Lord Bingham and Lord Denning. Our greatest jurists have all come to exactly the same conclusion. The President of the current Supreme Court, which dealt with the Rwanda case, said the same thing in paragraph 144 of its judgment in that case:

“the principle of legality does not permit a court to disregard an unambiguous expression of Parliament’s intention such as that with which we are concerned”.

So, the position is completely clear and those cases—

[Joanna Cherry]

rose—

[Sir William Cash]

Before the hon. and learned Lady seeks to intervene, I want to get this quite clear. The Miller case was on a different set of circumstances. Not only that, but it has been overtaken by subsequent constitutional judgments by the Supreme Court itself. I want to quote now from Lord—

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

I will give way. The hon. and learned Lady can say what she likes.

[Joanna Cherry]

It is refreshing to know that my article 10 rights have not been withdrawn yet. The point is this. The hon. Gentleman may be right, as a matter of domestic law of England that the sovereignty of the English Parliament allows England to change its domestic law internally. [Interruption.] He may be right; it is in dispute as we know. What he is definitely not right about is that this Parliament cannot domestically legislate to take us out of our international legal obligations without doing so clearly. The Supreme Court has been crystal clear about that. There are two separate matters here: domestic law and international law. If the Government want to breach their international legal obligations, am I not right, based on Supreme Court authority, that they will actually have to withdraw from the treaties to which they are committed?

[Sir William Cash]

Absolutely. I am glad that the hon. and learned Lady mentioned the fact that an unambiguous statement—an explicit statement, as Lord Sumption puts it—on the position in interpreting the intentions of Parliament carries enormous weight and, in fact, overrides international law obligations.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

No. I am going to read out—

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

No, I will not give way.

I am going to quote directly from Lord Hoffman himself in relation to an ECHR case. [Interruption.] This is the case of R. v. Lyons 2003. He states:

“the Convention is an international treaty and the ECtHR is an international court with jurisdiction under international law to interpret and apply it. But the question…is a matter of English law. And it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them…Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law…in a way which does not place the United Kingdom in breach of an international obligation”—

but, and this is absolutely crucial—

“The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.”

That is what the law is. That is a straightforward interpretation and statement.

There is an issue that I want to come to. I praise my right hon. Friend the Member for Newark (Robert Jenrick) for his courage and for a brilliant speech, and endorse every word he said, but I would also like to say this: we want the Government to succeed in their legislation, but it has to be legislation that works. As I have explained, in relation to the Supreme Court, the whole question turns on the intention of Parliament and the sovereignty of Parliament. It is a question of justiciability as well. I put to my hon. and learned Friend the Minister for Illegal Migration that, when it comes to it, we can make changes to the Bill. It is possible to extend the scope of the Bill, and I hope he will have discussions with the Clerk of Public Bills, with whom I have had discussions already.

It is absolutely clear that the scope of the Bill will determine the amendments, whether from the Government or Back Benchers. It matters that we are entitled to have a proper debate on this fundamental question about international law and its relationship to sovereignty. The Bill, if enacted after Royal Assent, could be scuppered by one claimant and by the courts if the words of the Act are not clearly expressed and explicit in ruling out any such claim, for example under clause 4 or any other heading, such as rule 39 and all the other things we will no doubt trot out in Committee if we get there. We therefore have to address the question of the scope of the Bill, because that is the way that Parliament functions. That is the way Mr Speaker must decide on the selection of amendments, so it is crucial.

There is much more that I could say, but I let me end by drawing attention to the global issue. The fact is that throughout the European Union there is a real problem. They are tearing their hair out, because on the one hand they have the charter of fundamental rights, and on the other they are bound by qualified majority voting to comply with the situation, which is actually not the same for us. We have a unique opportunity, in our parliamentary system and with the sovereignty of Parliament, to be able to make amendments and provide domestic law that will satisfy the voters of this country.

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[Sir Geoffrey Cox]

Yes, it is. It was changed two or three years later, but in the Nasseri case before the Appellate Committee of the House of Lords, their lordships upheld, as a matter of law, the deeming of countries to be safe and within the law. Indeed, they went on to say—Lord Hoffmann being one of them, I think—that while Parliament deemed it such, there were plainly risks if the Home Office did not keep an eye on the state and conditions in the countries that were thus deemed, but otherwise it complied with the law and the courts would respect Parliament’s decision.

What is being said in this case is that a Supreme Court decision has already held Rwanda not to be a safe country for the purposes of the guarantee against refoulement. It is said that for this House to overrule the decision of the Supreme Court in such an individual case is constitutionally undesirable and contrary to fundamental constitutional principle. I do not agree with that analysis. First, it is open to this Parliament at any point to take steps to reverse the effect of a judicial ruling—that is the consequence of parliamentary supremacy. It is clear that Parliament should be restrained in doing so in cases, for example, where individual rights in a case to reverse a determination made in favour of an individual would plainly be contrary to fundamental constitutional principle, but that is not what we are doing here. We are seeking to do precisely what the Labour Government did in 2004. We are saying that Parliament, legitimately weighing the evidence, has concluded that Rwanda will not engage in the refoulement of those sent to it. That is something the courts have already accepted. It is something that it is open to this House to do, and it is something that, in my judgment, it is perfectly legitimate for Parliament to undertake. It would be different if it were to reverse a decision against an individual.

But even if I am wrong about that, and even if as a matter of constitutional convention it were undesirable for this House to reverse the effect on a question of principle—namely, whether Rwanda is safe for the purposes of refoulement—the facts have changed. There is now a binding treaty, and it is binding not only in international law but in domestic Rwandan law. My hon. Friend the Member for Stone (Sir William Cash) has rightly analysed the situation of international law. In this country we have a dualist jurisdiction where treaties are not self-executing, but in Rwanda the treaty is self-executing, so it will be binding on the Rwandan Government not only as a matter of international law, but as a matter of their own law.

That treaty contains a range of important safeguards, including, as a longstop, the fact that no individual removed to Rwanda from this country can be removed to a third country without the consent of the United Kingdom. If that longstop is in place, if the treaty is binding in Rwandan law and if it is binding, as it is, in international law, then I would suggest that there is simply no credible risk of refoulement if treaties and legal rules mean anything in the United Kingdom and in Rwanda. If the risk of refoulement has been removed, then there is nothing inappropriate in this House determining, as the Labour Government did in 2004, that Rwanda is safe for the purposes of refoulement. So I say to the House that this is appropriate, and it is a judgment that we can make as a House to take the step that we are now taking.

[Joanna Cherry]

Will the right hon. and learned Gentleman give way?

[Sir Geoffrey Cox]

I cannot give way; I do not have time.

Let me move to the third and most important question, which relates to the exclusion of access to courts. This Bill carefully preserves the right of individuals to come to court in extreme cases of individual justice. I listened, impressed, to my right hon. Friend the Member for Newark (Robert Jenrick), and I submit to those who think the Bill goes far enough that we cannot sacrifice the principle of access to a court. If we eliminated it entirely, not only would the Bill collapse because it would be interminably impeded in the House of Lords, but it would probably lead to the Rwandan Government withdrawing; and it is conceivable that the courts could entertain, for the first time, a complex challenge about the right of this Parliament to do away with fundamental constitutional principles such as access to a court. The supremacy of this House does not necessarily mean that it does not operate within a complex system of constitutional institutions, each of which has its own place as a component part in that system.

--- Later in debate ---

[Joanna Cherry (Edinburgh South West) (SNP)]

I feel as if I have been sucked back in time to listen to Enoch Powell’s “rivers of blood” speech again. I represent a multicultural constituency containing many immigrants, many asylum seekers and many refugees, and I can tell the House that my constituents do not support the Bill. At the weekend, all sorts of people stopped me in the street to tell me that they hoped I would speak against it because they found it repugnant. Perhaps the hon. Member for Don Valley (Nick Fletcher) needs to inform his constituents that the reason they live in the conditions he described, and the reason they have such low wages, is not immigration, but more than 10 years of Tory government.

What I intend to focus on is the law, not as a lefty lawyer but as someone who tries to do what lawyers are bound to do—look dispassionately at the law. Those who listen to the public debate about the Bill, in the media at any rate, could be forgiven for thinking that the debate about its legality was confined to the competing tribes within the Conservative party, but fortunately it is not. There are sources of advice independent of the Government and independent of their querulous Back Benchers, and it is on them that I want to focus.

This morning, the Chair of the Joint Committee on Human Rights published a briefing based on the independent legal advice that has been given to the Committee. That independent legal advice is for the benefit of all Members of Parliament and peers, which is why it has been published. I have also had occasion to consider the briefing published by the Bingham Centre for the Rule of Law. They are both important, because the Government are trying to position themselves as having stopped short of breaching international law, but those independent briefings make it clear that they have not. The Bill undermines the principles of the rule of law and the separation of powers, which are supposedly central to the British constitution, as well as undermining various of our international obligations.

I commend to hon. Members a reading of the independent legal advice that has been given to the Joint Committee on Human Rights. I will take a few highlights from it. Requiring the courts to conclude that Rwanda is safe, even though the evidence has been assessed by the UK’s highest courts to establish that it is not, is a remarkable thing for a piece of legislation to do. If the Government were so confident that Rwanda has suddenly become safe in the last month, as I said earlier, why pass this Bill at all?

Another point made in the Joint Committee on Human Rights’ legal analysis is that disapplying the Human Rights Act is very significant. If human rights protections are disapplied when they cause problems for a policy goal, they lose the fundamental and universal quality that characterises them, and that is arguably particularly the case when they are disapplied in respect of a particular group—in this case, migrants who have come to the UK without prior permission. In my own aside, I will just remind the House that history shows that when a country withdraws human rights from a particular group, it is on a particularly slippery slope.

The independent legal advice to the Joint Committee also makes it clear that, crucially, no matter what the legislation says, it can affect only domestic law. That was the point of my intervention on the hon. Member for Stone (Sir William Cash) earlier. As the Supreme Court explained only a month ago, the United Kingdom is prohibited from allowing refoulement under the refugee convention and the ECHR, as well as under the UN convention against torture and the international covenant on civil and political rights. Passing this Bill will not change the fact that we are signed up to those obligations in international law, and it will not change the fact that we are breaching our international legal obligations, so the Conservative Members—particularly the lawyers—who have convinced themselves that it is okay to go through the Lobby and vote for the Second Reading of this Bill tonight are simply wrong. If they look at the independent legal advice from the JCHR and the Bingham Centre on the Rule of Law, they will see that that is the case.

[Chris Stephens (Glasgow South West) (SNP)]

Is it not a fundamental problem with the Bill that so many people see it as punishing the exploited and not the exploiter? If the Government were serious about this issue, that is exactly what they would focus on.

--- Later in debate ---

[Joanna Cherry]

Indeed. It has been suggested by a number of speakers this afternoon that no alternatives to the Bill have been suggested, but alternatives have been suggested, including a serious attempt to break the model of the people smugglers and proper international co-operation. Unfortunately, because of Brexit and the Government’s attitude towards international law, the United Kingdom’s opportunities for international co-operation are becoming few and far between. People no longer trust us and we do not have the same avenues for international co-operation as we used to have. Creating safe and legal routes is the way to do it. That is what we used to have. People who are seeking asylum are not seeking asylum illegally; they come across the channel because they have no other way to seek asylum except by coming to this country, so we should create legal routes.

[Lia Nici (Great Grimsby) (Con)]

Will the hon. and learned Lady give way?

[Joanna Cherry]

I will in a moment.

I want to say something about how this Bill impinges on Scotland. Conservative Members talk about their mandate and about their constituents wanting this Bill. I want to make it clear that people in Scotland do not want it. This is not the approach that we want in Scotland. It is therefore particularly egregious that the Bill seeks to oust the jurisdiction of the Scottish courts in relation to such fundamental matters as human rights and the basic tenets of our constitution. Scotland’s system of civil justice is a devolved matter under the Scotland Act and therefore the preserve of the Scottish Parliament, yet I do not see any legislative consent motion being sought, despite the fact that the jurisdiction of the Scottish courts is being ousted. Perhaps even more importantly—and this is rather important to us Scots lawyers—the authority and privileges of the Court of Session, including its inherent supervisory jurisdiction, are protected by article XIX of the Treaty of Union, which includes the nobile officium of the Court of Session, a power that exists to give remedies where otherwise there would be none. That is arguably also threatened by this Bill.

I know the Government are not terribly interested in Scotland, but I wonder whether they have applied their mind to whether there should have been a legislative consent motion, and to whether this legislation is in breach of the Treaty of Union by ousting the jurisdiction of the Scottish courts. I see the Minister looking at his notes, and I would be particularly interested to hear him answer those points in his summing up.

UK-Rwanda Partnership

Joanna Cherry Excerpts

Wednesday 6th December 2023 Commons Chamber

[James Cleverly]

I have said from this Dispatch Box and in a number of other locations how much I value the work of the Immigration Minister. He has done a huge amount of work on this and in a number of other areas, and the work he has done to drive down small boat arrivals by a third has been absolutely instrumental. I have no doubt that the whole Government will work to ensure that this legislation achieves what I think we should all want to achieve, which is to break the business model of the people smugglers and to prevent people from being abused by them in an attempt to come and live in the UK.

[Joanna Cherry (Edinburgh South West) (SNP)]

From the point of view of those of us who believe in the rule of law, the separation of powers and the universality of human rights, there are at least three extraordinary things about what the Home Secretary has said this evening. First, he says that he does not have confidence in the domestic courts of the United Kingdom because they cannot always be relied upon to do what he wants them to do. Secondly, he says that he will replace the jurisdiction of the domestic courts of the United Kingdom with ministerial fiat in relation to interim measures passed by a court presiding over a treaty to which we are fully signatories. Thirdly, as Jonathan Sumption has said, it is extraordinary for the law to say that the facts are other than they are, and then to oust the jurisdiction of the courts from determining whether that is the case. It is not just extraordinary; it is also not compliant with article 6, and of course the European convention on human rights is part of our domestic law by virtue of the Human Rights Act, which the Home Secretary is not repealing.

My question for the Home Secretary is this: is he proud of driving a coach and horses through the British constitution?

[James Cleverly]

What I am absolutely proud of is the fact that we are seeking to break the business model of the people smugglers. We recognise that, as the threat from organised criminality and the tactics of people who prey on the weak and vulnerable and put their lives at risk evolve, so our response has to evolve. This is an international problem, and we are resolving it through international relationships. I am proud of the work that Rwanda has done to reform its institutions, with our support and the support of others. We on this side of the House will not rest until the people-smuggling gangs have been broken.

Legal Migration

Joanna Cherry Excerpts

Monday 4th December 2023 Commons Chamber

[James Cleverly]

I have huge respect for my right hon. Friend, but the figures just do not bear out his assessment. The vast majority of people in the last couple of years’ worth of immigration figures are in the lower end of the skills spectrum. The figures do not bear out his point.

[Joanna Cherry (Edinburgh South West) (SNP)]

There is no evidence that immigration pushes down wages. I do not know if the Secretary of State has any elderly relatives in care, but I do. I know the invaluable contribution that overseas care workers make. Many are young men and women, for example from the Philippines, who are wonderfully hard-working, caring and very respectful of elderly people. Why should they be forced to leave their dependent children thousands of miles away in the Philippines?

[James Cleverly]

No one is being forced to do anything. If people choose to come here, they choose to abide by the rules that we put in place. That is completely fair and appropriate. My mother came to work in the NHS in the 1960s. We value the people from around the world who have come to support us, but it is right and fair that we put rules in place, that we let people know those rules and, if they wish to come and join us in this wonderful country and work in our wonderful society, it is right and fair that they abide by those rules.

Draft Strikes (Minimum Service Levels: Border Security) Regulations 2023

Joanna Cherry Excerpts

Monday 27th November 2023 General Committees

[Robert Jenrick]

We would not introduce the draft regulations if we believed that we were in contravention of our legal or international obligations. We do not believe that to be the case. It is worth stating that restrictions on the right to strike are common across Europe and signatory countries to the European convention on human rights. Minimum service levels exist in a range of countries in the EU and globally—

[Joanna Cherry (Edinburgh South West) (SNP)]

On that point, will the Minister give way?

[Robert Jenrick]

If I can finish the point, I will come back to the hon. and learned Lady.

Minimum service levels are a legitimate mechanism to implement necessary restrictions to balance the ability to strike with the needs of the general public. I could give examples of countries that have taken similar steps in recent years such as Portugal, France, Spain and others.

The second point to make in answer to the hon. Member for Easington is that nothing in the draft regulations will prohibit the ability of those working in border security to go on strike. The regulations will limit it, and ensure that a minimum level of service can be conducted. There is no general prohibition on the right to strike; we have said, however, that it is absolutely in the interests of the general public—for the free flow of goods and services through a port—and of national security that at all times we maintain a minimum level of service.

As the Minister responsible for border security during recent strike action, I thought it was extremely important to the country that we kept each and every one of our ports open and that we did not compromise national security. That is why I worked closely with the Secretary of State for Defence to ensure that military personnel were available at our ports. They did a fantastic job of achieving that, but it is not a sensible, long-term solution to ask members of our armed forces to step in on such occasions to protect our border security. It is right to put a sustainable solution in place.

[Joanna Cherry]

To take the Minister back to the legal point made by the hon. Member for Easington, he will recall that the Joint Committee on Human Rights produced a report on the Act under which the draft regulations are being made. In an analysis of the law, we in the Committee pointed out that the European Court of Human Rights—in a case, somewhat ironically, against Russia—was clear that article 11 protects the right to strike. The Minister is perfectly right to say that other countries have minimum service-level laws, but they have different legal arrangements from us, with many providing a constitutional right to strike. The real question for the Government should not be whether other countries have minimum service-level regulations, but whether the United Kingdom Government are meeting their human rights requirements under article 11 of the ECHR.

[Robert Jenrick]

The hon. and learned Lady knows that article 11 is a qualified right. We strongly believe that, although there must be a right to strike, it must be balanced—qualified—by the need to protect the general public and ensure national security, and that is the crux of the argument. It is also worth saying that we will introduce compensatory measures, in the form of non-binding conciliation, to compensate the personnel who will be affected for interfering with that qualified right. Taken together, we believe that all of that satisfies our legal obligations.

The regulations stipulate that border security services can be provided only by those who already provide border security services or the relevant passport services required in the interests of national security, which means we will no longer need to rely on outside resource to provide cover. As I have said in answer to interventions, in the past we have used civil servants working elsewhere and, above all, members of the armed forces. We acknowledge and appreciate the efforts of colleagues who provided that cover, but we also recognise that that is not a long-term solution.

--- Later in debate ---

[Joanna Cherry]

It is a pleasure to serve under your chairpersonship, Ms Elliott, and a particular pleasure to follow the speech of the hon. Member for Easington.

I am grateful for the opportunity to make a few remarks about the regulations in my capacity as acting Chair of the Joint Committee on Human Rights. Back in March, we published a legislative scrutiny report on the Strikes (Minimum Service Levels) Bill, as it then was, and raised a number of serious concerns about the Bill’s compatibility with the United Kingdom’s obligations under international law, including in particular the right to freedom of assembly and association guaranteed by article 11 of the European convention on human rights, which of course is part of our domestic law by virtue of the Human Rights Act. As I said in my intervention on the Minister, although article 11 does not expressly refer to the right to strike, the European Court of Human Rights has interpreted it as covering the taking of strike action, for example in the case of Ognevenko v. Russia.

During the passage of the Bill, there were many references to arrangements in other European countries, as there have been today. To my knowledge, no European countries apart from Russia and Hungary impose minimum service levels from the top down, without negotiation or arbitration, in this way. I suggest that that is not company that the United Kingdom Government should wish to keep.

The draft regulations continue to cause the Joint Committee concern. We need to remember that, as we discuss in our report, the consequences of employees failing to work when required to do so by employers that impose minimum service levels through work notices, and of trade unions not taking reasonable steps to ensure that members comply with the work notices, include a loss of automatic protection against dismissal for participating in a strike. That is a major consequence for any individual worker, particularly in today’s climate, which was so ably described by the Member for Easington. In our original report, we expressed concern that such severe consequences may amount to a disproportionate interference with article 11. Having considered the draft regulations, we remain of the view that they could impose a disproportionate interference with article 11.

At the end of last week, in my capacity as acting Chair, I wrote to the Secretary of State for Business and Trade to raise concerns about the border security regulations and the other regulations being debated today. In particular, the border security regulations permit an employer to serve a work notice that requires border services to be “no less effective” on a strike day

“than they would be if the strike were not taking place”.

That kind of defeats the purpose of holding a strike, and therefore arguably completely undermines the right to strike. The Joint Committee on Human Rights recognises the crucial service carried out by border service staff and applauds them for it. But the proposed minimum service level raises a question not only about the ability of many individual employees to participate in a strike, but about the extent to which the strike could serve any purpose at all. As we have heard, particular concerns arise in respect of small ports and airports, where “no less effective” services could result in staff teams being effectively prevented from striking at all. As my hon. Friend the Member for Glasgow Central said, that would have a particular impact in Scotland, which has a number small ports and smaller airports.

The Trades Union Congress is rightly very concerned about the implications of both the Act and the draft regulations. I met with them a couple of weeks ago, after the regulations were laid, to discuss its particular concerns about the border security regulations and the other regulations. The TUC made the point that, in contrast to the other regulations, the border security regulations are very short, but they are very strict. They will mean that probably only one in four workers in this field will be able to go on strike and that services must remain as they are on non-strike days.

The regulations set out that border security services should be provided at a level that means they are no less effective. That will include the examination of people and goods, the patrolling of ports and airports, and the collection and dissemination of intelligence. It goes beyond security issues.

[Grahame Morris]

I am not a barrister or a lawyer, but I do think this is a really important point. Is there an analogy between reasonableness and proportionality? Would it be reasonable to have an independent arbiter of what constitutes a reasonable proportion of the workforce, rather than a Minister?

[Joanna Cherry]

That is what happens in many other European countries. Of course, any interference with the article 11 rights has to be proportionate, and given the extent of these regulations, there is a very real argument as to whether the interference is proportionate. I believe that it is not.

I note—and the TUC drew to my attention—that the Government estimate that the regulations will mean staffing levels of around 70-75% of Border Force. Only one out of four people working for Border Force will be able to exercise their right to strike; that strikes me as rather disproportionate. As my hon. Friend the Member for Glasgow Central said, this is all because the Government say

“all ports and airports should remain open on a strike day.”

As I understand it from the TUC, the Government are committing that they will agree to engage in conciliation for national disputes in relation to border security. Where the relevant unions agree, that would be helpful, but it is not written into the regulations. I wonder why that is not written into them; will the Minister address that?

The impact assessment for the border security minimum service levels warns, not surprisingly, that some people’s rights to strike will be effected. It says:

“As Border Force staff numbers based at some smaller ports and airports are very low, Option 2”

—the one the Government opted for—

“could mean that staff based at these locations are more likely to receive work notices, thus they are less likely to be able to undertake strike action, when compared with other staff. Similarly, the requirement to maintain particular border security functions during strike action could mean that officers trained in critical functions are less likely to be able to undertake strike action than those who have not taken the training.”

The point the TUC made to me is that it is unacceptable that such a profound effect on a fundamental right—that of the right to strike—should not be subject to a more detailed analysis than it has been in the impact assessment.

I have already raised a couple of questions that I want the Minister to address, and I will add two more. The Minister said in response to my earlier intervention about the law that the Government are satisfied that border security workers, particularly those at small ports and airports, will be able to exercise their article 11 rights if these regulations are passed, and the minimum service levels contained in them are imposed. Having regard to the points I have made about the numbers of people who would be prevented from exercising their right to strike—it looks like 75%, and indeed 100% at small ports and airports—will the Minister explain—

[Katherine Fletcher (South Ribble) (Con)]

Will the hon. and learned Lady give way?

[Joanna Cherry]

I will just finish the point.

Will the Minister explain how he is satisfied that preventing 75% of workers across the force, and all workers in certain ports and airports, from striking is a proportionate interference with the right to strike?

[Katherine Fletcher]

I am listening carefully to the hon. and learned Lady’s exposition on the rights of the workers of Border Force. I am just wondering where she thinks the balance is with the right of the British public to be safe. We know that we have some problems with criminality in the UK. Perhaps, for example, a drug dealer realises Border Force is on strike, and he thinks, “Fantastic, I will go to that small port and put 20 kg of children-killing heroin through it.” How can we find the balance of everybody’s rights?

[Joanna Cherry]

It is not for me to say what the balance should be; that is for the law. For the time being—thank goodness—this country is a signatory to the European convention on human rights. For the time being—thank goodness—we still have the Human Rights Act. The jurisprudence of the Court is pretty clear. As I said, it is normally countries such as Russia and Hungary that are taken to the European Court of Human Rights, not this country. We actually have a pretty good record in the European Court of Human Rights—[Interruption.] Let me just expand on this point. That will not continue to be the case if we pass these regulations.

It is a question of proportionality. The right to strike is not absolute; it can be restricted in accordance with law, but it has to be a proportionate interference. My point—

[Katherine Fletcher]

What about the rights of people in this country?

[Joanna Cherry]

The hon. Lady is going on about the rights of the public. Yes, of course the public have rights. The public have the same rights as the workers—in fact, many members of the public are workers. There is not some sort of strange grouping called “trade union members” and “workers”, and then the “public”. Many members of the public in this country are still trade union members. Many of my constituents are trade union members. Many of the hon. Lady’s constituents will be trade union members. These rights are rights of members of the public.

I think the hon. Lady is talking about the rights of the service users. Yes, the law does balance the rights, but it has to be a proportionate interference. My point is that when some workers are being prevented from striking altogether, and when in other cases 75% of the workforce are being prevented from striking, that is not a proportionate interference. We will not see such interference in other European democracies unless we care to dignify countries like Russia and Hungary with the word democracy—I do not think many of us would. That is the company we will be keeping. This is draconian. To suggest otherwise is simply, factually incorrect.

[Grahame Morris]

The hon. and learned Lady is making an excellent point, and making it far better than I could. I would like to reinforce the point. Article 11 states:

“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

The right for trade unions to take industrial action is further enshrined in the International Labour Organisation’s convention 87 and article 6(4) of the European social charter. The legislation seems to disregard those legal obligations.

[Joanna Cherry]

I am grateful to the hon. Gentleman for that intervention—[Interruption.]

[The Chair]

Can we keep the volume down? I am struggling to hear the contributions.

[Joanna Cherry]

Thank you, Ms Elliott.

Article 11 goes on to say that there can be an interference with that right only in accordance with law in a way that is “proportionate”. The whole point that I am trying to make is that this is not a proportionate interference with the right to strike. I am not saying that there should not be minimum service levels, and there are minimum service levels across Europe. We already have minimum service levels imposed by sectoral agreements in various areas of public service across the United Kingdom. We should be trying to reach those minimum service levels by agreement, and where agreement cannot be reached between the unions and the employers, then there should be arbitration. That is the proportionate way in which to do it.

I would like to wind up. If anyone is interested in the balance of rights, we addressed it in some detail in the Joint Committee on Human Rights report published earlier this year. First, how is the Minister satisfied that the regulations are a proportionate interference with the right to strike, when in some cases they will prevent all workers from striking, and in some cases it will be 75%? Secondly, what assessment have the Government made of the extent to which effective strike action is still possible in cases where services must be no less effective than if no strike were taking place? On what basis does the Government conclude that restricting strike action in this way amounts to a proportionate interference with article 11, both generally and specifically for those individuals identified in a work notice?

Illegal Immigration

Joanna Cherry Excerpts

Wednesday 15th November 2023 Commons Chamber

[James Cleverly]

I pay tribute to my right hon. Friend—[Interruption.] I meant to say my hon. Friend, although he deserves to be my right hon. Friend. I know that he did a lot of the work on this very subject, and his question goes to the heart of how we operationalise the Rwanda plan. Their lordships set out exactly the point he raises about capacity building and professionalising Rwanda’s system. I have had exchanges this morning with my Rwandan opposite number, who I have met before. The Rwandans are keen to build and strengthen their institutional structures, and they see us as a key partner in achieving that. Together we will work to operationalise this plan. I pay tribute to my hon. Friend for the work he did on this very issue.

[Joanna Cherry (Edinburgh South West) (SNP)]

The Supreme Court’s judgment has put paid to the lazy, ill-informed argument that it is the European convention on human rights, and only the European convention on human rights, that is blocking this Government on asylum and immigration. This Government have spent two years formulating a policy that has proven incompatible with a multitude of international treaties to which the UK is signed up and with numerous provisions of our domestic law. The Supreme Court was very clear about that. My question for the Home Secretary is this: when is he going to explain to his Back Benchers that the UK Government’s response to this judgment must be to produce a humane asylum policy that works, not to try to overcome vital checks and balances of the rule of law and human rights law that stymie bad policy decisions and protect human rights?

Illegal Migration

Joanna Cherry Excerpts

Tuesday 24th October 2023 Commons Chamber

[Robert Jenrick]

As we make more progress on stopping the boats, so we will make more progress on closing the hotels. I am grateful to my right hon. Friend for his work. His constituents have experienced the reality of illegal migration, not just in hotels that should be used for tourist purposes being taken away from them, but through a serious murder in the community, which should give us all pause for thought and urge us to redouble our efforts to stop people coming to the UK in that manner.

[Joanna Cherry (Edinburgh South West) (SNP)]

Unlike many Conservative Members, I am glad that the United Kingdom remains a signatory to the European convention on human rights. That means that refugees and asylum seekers who come to the UK have exactly the same rights as each of us in this House. That includes the right not to be subject to inhumane or degrading treatment. Many of my constituents are concerned about the conditions in which refugees and asylum seekers have been kept in the past. They were worried about the Legionella on the barge, and they saw the conditions in Manston and Napier—the overcrowding, and the worst spread of diphtheria in decades. What can the Minister do to reassure my constituents that the human rights of refugees and asylum seekers will be respected while they are in his Government’s care?

[Robert Jenrick]

We take seriously our obligations to treat anyone in our care with dignity and compassion, and when we or our providers fall below that standard, it is right that we take action against those involved. The situation is challenging to manage; the hon. and learned Lady knows that from her city of Edinburgh, which houses comparatively few asylum seekers and has no migrant hotels, and whose council explicitly turned down the opportunity to house asylum seekers on the very vessel that it used for Ukrainian refugees. If she wants to support further asylum seekers coming to her community, she has to find accommodation for them.

[Joanna Cherry]

It’s a Labour council, not an SNP one.

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. Enough. We have had that question, and we are now moving on to the next one.

Illegal Migration Bill

Joanna Cherry Excerpts

Consideration of Lords message
Monday 17th July 2023 Commons Chamber

[Sir John Hayes (South Holland and The Deepings) (Con)]

Edmund Burke said that what matters

“is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do.”

In considering the Government’s response to the Lords amendments, it is important to re-emphasise that the Bill is about fairness; about affirming the integrity of our nation by defending our borders from those who seek to arrive here illegally. We must have the power to remove those entrants from our country. To do so is just and fair. It is what the British people expect, what they voted for in 2019, and what they chose in the Brexit referendum.

Considering the arguments made in the other place, I was struck by the absence of a credible alternative to the Government’s proposal; there seems little sense there of the need to control our borders, stop the boats, save lives, and to make our immigration system fairer, more reasonable and more just. Sadly, much of the debate on the amendments in the other place has been characterised by a combination of denial and detachment from the popular will—denial about the urgency of the problem, and detachment from the sentiments expressed by my constituents and the constituents of other Members on both sides of this Chamber. Those arriving in small boats must be detained securely and removed swiftly, and it must be a straightforward process, for only through that process will we deter more people from arriving.

[Joanna Cherry (Edinburgh South West) (SNP)]

Will the right hon. Gentleman give way?

[Sir John Hayes]

I will not, because of the time—I apologise to the hon. and learned Lady.

As the Minister has made clear, the Government’s response to Lords amendments 1B, 7B and 90D is rooted in the understanding that those amendments are unnecessary. The Government take our international obligations very seriously. Indeed, all three Appeal Court judges agreed that the Government’s commitments were in tune with and compatible with international law.

As for the motion to disagree with Lords amendment 23B, we must keep this matter in perspective. There is no evidence whatsoever that the vast majority of people coming to this country in small boats, or indeed a significant number of them, are seeking shelter from persecution because of their sexuality, and it is a distortion to pretend otherwise. In respect of the motion to disagree with Lords amendment 102B, this business of “safe and legal routes” is, again, a distraction, and a detachment from the urgency of this problem. The amendment is unnecessary and seems to constitute legislative grandstanding, for under section 1 of the Crime and Courts Act 2013, the functions of the National Crime Agency already extend to combating all types of organised crime, including organised immigration crime.

Finally, let me deal with the motion to disagree with Lords amendments 107B and 107C, which propose the Archbishop of Canterbury’s “ten-year strategy”. I approve of having the Lords Spiritual in the other place. They are otherworldly—the Lord Bishops understandably take a view about an infinite, eternal future. However, those of us who are elected and answerable to the people directly have to deal with this world, here and now; and in this world; people demand that we control our borders, and they do so justly and reasonably.

Illegal Migration Bill

Joanna Cherry Excerpts

Consideration of Lords amendments
Tuesday 11th July 2023 Commons Chamber

[Robert Jenrick]

I do not agree with that. There are a few important exceptions, which I will come on to. I hope that, in my remarks and in answering any questions, I will reassure the hon. Lady that, on the points of substance made by those who want to see the Bill proceed and the issue tackled, the Government are making the right changes to the Bill.

[Joanna Cherry (Edinburgh South West) (SNP)]

The Minister says that no one has proposed a credible alternative, but four Lords amendments do. Lords amendment 102 proposes a

“Duty to establish safe and legal routes”.

Lords amendment 103 would amend the Crime and Courts Act 2013 to confer on the National Crime Agency specific functions to tackle cross-channel organised crime. And under Lords amendments 104 and 107, the Government would set up a 10-year strategy on refugees and human trafficking, working with foreign Governments. Do those four amendments not constitute a credible alternative?

[Robert Jenrick]

As it happens, I will come to each of those points later in my speech, if the hon. and learned Lady does not mind, but in each case, we are already doing what she asks us to do. The Bill has a specific provision in respect of safe and legal routes and, when we had this debate in this House previously, we agreed further to set out the details of that. As for the National Crime Agency, its officers who work on organised immigration crime—I met them in recent weeks in Belgium, France, Italy, Tunisia and Libya—would be very surprised to hear that the agency does not have the authority to act on organised immigration crime because those in some cases very brave men and women are doing that work every single day on our behalf already.

--- Later in debate ---

[Robert Jenrick]

It is not normal practice to state that on the face of the Bill. It goes without saying that the Government obey our international obligations, as we do with all pieces of legislation.

[Joanna Cherry]

Will the Minister give way?

[Robert Jenrick]

I will make some progress, because I appreciate that this is a relatively short debate. If the hon. and learned Lady does not mind, there are other questions I need to address.

Detention has attracted a great deal of interest from Members from all parts of the House, as indeed it did in the other place. Detention is a necessary part of the scheme provided for in the Bill. The duty on the Home Secretary to make arrangements for removal is accompanied by strong detention powers. We know from experience that once a person is released from detention, the prospects of being able to effect removal are significantly reduced, because they typically abscond. That is why the Bill restricts, but does not exclude, judicial challenges within the first 28 days of detention. That is so that illegal migrants can be processed and removed, rather than simply absconding on arrival. The powers cover family groups the same as others, so as to not provide a perverse incentive for people smugglers and migrants to co-opt unaccompanied children into bogus family groups to avoid detention, putting children at risk in the process.

Lords amendments 31 and 35 to 38 seek to restore the existing 24-hour limit on the detention of unaccompanied children and the 72-hour limit on the detention of pregnant women. I recognise that there are particular sensitivities around the detention of those cohorts, and we debated those at some length in earlier proceedings in this House. Recognising the health concerns around the detention of pregnant women and the particular vulnerability of unaccompanied children, we have brought forward amendments in lieu that maintain the existing 72-hour limit, extendable up to a week with ministerial authorisation, on the detention of pregnant women, and that enable the first-tier tribunal to consider granting immigration bail after eight days for unaccompanied children, rather than the 28 days provided for in the Bill. A number of Members of this House spoke out on the issue of pregnant women, but I pay particular tribute to my noble Friend Baroness Sugg for campaigning in the other place.

--- Later in debate ---

[Robert Jenrick]

I will not, if the right hon. Gentleman will forgive me. I feel that I have to make progress now.

Lords amendments 1, 7, 90 and 93 are all the more unnecessary as the Bill already affords adequate protections against removal to a country that is unsafe for a particular person. That brings me to Lords amendment 23, about the removal of LGBT people to certain countries. Let me say unambiguously that we treat the safety of LGBT people with the utmost seriousness, and do not want to do anything that would in any way compromise their safety and security. I regret to say that Lords amendment 23, though clearly well intentioned, misunderstands the approach taken in the Bill. With the exception of EU and European economic area nationals and those of Switzerland and Albania, people will not be returned to their home country if they make a protection claim. If a person is issued with a third-country removal notice, they can challenge their removal to the specified country on the basis that they would face a real risk of serious and irreversible harm there, including persecution. If a serious harm suspensive claim is refused, the person has an avenue of appeal to the upper tribunal. The amendment is well meant, but the concerns that underpin it are unfounded. We take pride in the UK’s support for LGBT communities globally, and our commitment to this cause remains unwavering.

[Joanna Cherry]

Rwanda has no laws prohibiting discrimination against same-sex attracted people, and people whose gender identity is different from their sex at birth. Can the Minister not understand why an LGBT person might rather come to the UK for asylum, where we have such anti-discrimination laws, than be sent somewhere like Rwanda, which does not?

[Robert Jenrick]

I understand the hon. and learned Lady’s point. I say two things in response. First, the premise of asylum claims being handled in safe third countries is that those countries must be safe. Through our partnership with the Government of Rwanda, we have done work to ensure that appropriate safeguards are put in place. That has been tested by the courts, and remains an ongoing matter for the courts. Secondly, we placed a safeguard in the scheme: a person can claim that their removal to that country would put them at real risk of serious and irreversible harm, which includes persecution. I completely understand why the hon. and learned Lady says what she does, and the legitimate concern that she voices, but I do not think that the instance that she raises is founded in reality. If it were, we would take that very seriously indeed, because the Government do not want to do anything to compromise the safety and security of LGBT people.

In response to Lords amendments 73 and 74 about the power to amend the meaning of “serious and irreversible harm”, we have sought to provide further assurance by bringing forward an amendment in lieu to ensure that the power cannot be used to remove the provisions in clause 38(4) that set out what constitutes serious and irreversible harm.

Lords amendments 8 and 9 undermine a key plank of the Bill, which is the provision under which asylum and relevant human rights claims can be declared inadmissible. Lords amendment 8 would incentivise people smugglers to prioritise unaccompanied children, which would put more young lives at risk and split more families. Amendment 9 would simply afford illegal entrants yet another opportunity of playing the system and dragging things out as long as possible, in the hope that they would become eligible for asylum.

Lords amendment 50 seeks to limit the Secretary of State’s power to transfer a child out of local authority accommodation and into accommodation provided or arranged by the Secretary of State, by providing that the Secretary of State may do so only where that is necessary to safeguard and promote the welfare of the child. Again, the amendment is unnecessary and duplicates existing law. Under section 55 of the Borders, Citizenship and Immigration Act 2009, the Home Secretary is already required to have regard to the need to safeguard and promote the welfare of the child when making a decision to exercise the “vice versa” power.

Moving on to safe and legal routes, Lords amendment 102 relates to clause 59, which requires the Home Secretary, within six months of Royal Assent, to prepare and publish a report on the safe and legal routes by which persons may enter the UK, including any proposed additional safe and legal routes. Lords amendment 102 would in effect mandate that such additional safe and legal routes be brought into being within two months of the publication of the clause 59 report. Again, the amendment is unnecessary. As I set out on Report in April, we will implement any proposed new routes as soon as practicable, and in any event by the end of 2024.

Illegal Migration Bill

Joanna Cherry Excerpts

Tuesday 11th July 2023 Commons Chamber

[Stuart C. McDonald]

I absolutely forgive you for that, Mr Deputy Speaker, and I offer my apologies to the Chair of the Home Affairs Committee. I look forward to hearing her remarks shortly.

It is a pleasure to follow the right hon. Member for Maidenhead (Mrs May), and I echo everything she said about modern slavery. I would like to say it is a pleasure to be taking part in a debate on this Bill again, but unfortunately it most definitely is not. Members will not be surprised to hear that the position of my party is that this remains a rotten, utterly misconceived and cruel Bill that will not stop boats but will cause immense human suffering to people who have fled persecution and harm. For the reasons we have just heard, it is a traffickers charter. It has been rushed through Parliament in a most appalling way, without consultation or proper scrutiny.

Although the House of Lords has done some decent work to date, forgive me if we are not popping the champagne corks at this stage. The 20 Lords amendments add a bit of polish, but they barely scratch the surface of the problems with the Bill, and experience tells us, unfortunately, that their lordships will be bargained down to three or four moderate concessions. They have already passed up the chance to refuse the Bill a Second Reading, with Labour peers abstaining for utterly unconvincing reasons. If it was a revising Chamber with any sort of teeth or credibility, it would at least be using its powers to delay this Bill and let voters decide this issue for themselves at the next election.

In that context, it is vital that we remember during today’s debate and the whole ping-pong process that only one solitary sentence in the Government’s 2019 manifesto referred to asylum. It was a very benign sentence:

“We will continue to grant asylum and support to refugees fleeing persecution, with the ultimate aim of helping them to return home if it is safe to do so.”

That was it. This Bill, and every single one of the Government’s motions to reject the Lords amendments, is completely and utterly contrary to that pledge. Without the amendments, the Bill will essentially stop the grant of asylum to almost anyone. Instead of offering support or an assisted return home to most refugees, it will enforce unlimited detention at the whim of the Home Secretary, permanent limbo, or threatened removal to Rwanda. Even children and trafficking victims are not to be spared, and the consequences for them will be horrendous.

This outrageous Bill, which rides roughshod over international law without any electoral endorsement, is precisely the sort of Bill that the House of Lords should be voting down and delaying. We can make that less necessary by agreeing to all the Lords amendments. That is the least we should do, and it really should not be too much to ask.

As we have heard, we are talking about amendments that will ensure compliance with our international obligations under vital international treaties such as the refugee convention, the European convention on human rights, the trafficking convention and the convention on the rights of the child. We are talking about basic respect for the rule of law, and my party wholeheartedly endorses Lords amendment 1, which incorporates those obligations into the Bill.

[Joanna Cherry]

When the Minister was asked about Lords amendment 1, he said that it “goes without saying” that the Government adhere to their international obligations, but they have not been able to certify the Bill as compatible with the ECHR and the cross-party Joint Committee on Human Rights, under my chairmanship, said that the Bill risks breaching a number of our binding international human rights obligations. Is it not the case that, as things stand, the only way we have of putting that right is to support Lords amendment 1?

[Stuart C. McDonald]

I absolutely agree. The most obvious example—I would say it is blindingly obvious—is the trafficking convention. That says that we must provide support to victims of trafficking, yet here we have a Bill that says the opposite. We are going to say, “Victim of trafficking or not, you are not getting support.” That is a blatant contravention of the trafficking convention, and that is why we need the treaties in Lords amendment 1 incorporated into clause 1.